Should courts have a constitutional role in determining Ohio school funding policy?

Jun. 8, 2014

The new Madison Junior High School building gets some roofing work done in this file photo. The construction was aided by the Ohio School Facilities Commission, which was created after the Ohio Supreme Court declared the state's school funding formula unconstitutional. / Jason J. Molyet/News Journal

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CentralOhio.com

The language

Here is the language from the Ohio constitution being debated by the Ohio Constitutional Modernization Commission, as well as the proposal to remove the language that was critical in past school funding court cases. As passed in 1851

The General Assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state. The proposal

The General Assembly shall provide for the organization, administration and control of the public school system of the state supported by public funds, without discrimination as to race, color, national origin, sex or religion. No religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.

12-year case hinged on ‘thorough and efficient’

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Three little words have been the cause of numerous battles in the history of the world, but the debate boiling in Ohio is unique in that it deals with education policy and not a profession of love.

Since 1851, the state’s constitution has required the legislature to create a “thorough and efficient” system of public schools, but a proposal to eliminate that language has sparked a fierce debate among education supporters about their necessity.

Chad Readler, chairman of the education subcommittee of the Ohio Constitutional Modernization Commission, in March made the proposal, which would require the legislature to provide the “organization, administration and control of the public school system.”

The attempt was met by nearly instant attacks from various groups. School boards across the state called for the language to remain, and advocates for public education attacked the motives for the action. The Ohio Education Association, which represents teachers, voted unanimously to support maintaining, if not strengthening, the existing language.

“Why in the world would you want to be changing words; words that held up for 160 years?” asked association President Becky Higgins. “It does a great disservice to students and children in Ohio.”

Readler, however, said his attempt was far from nefarious. In fact, he said the proposal was made to simplify the constitution and ensure the legislature has full control of the state’s education policy.

“The intent behind the amendment has been misconstrued,” he said. “With respect to ‘thorough and efficient,’ it has been utilized in ways to take education policy disputes and debates from the halls of the legislature — where I think they should lie — to the courts.”

Sen. Bill Coley, a Republican from near Cincinnati, serves on the subcommittee and said removing the language is at least worth examining. With technology and new ideas changing education, he said it makes sense to protect the state from lawsuits by people who think schools should be one teacher standing in front of a blackboard talking to students.

“We want to make sure we don’t do anything in the constitution that hampers teachers and schools,” he said.

Removing the courts

While the two sides are far apart on the merit of the proposal, they do agree on what it would do: place the full power of setting education policy with the state legislature and removing any judicial oversight.

By requiring the state to provide a “thorough and efficient” system of schools in the constitution, a standard — however nebulous — exists that can be challenged.

Readler said he expects everyone in Ohio wants a world-class education system, but the people to do that should be those in charge of setting the law. The “thorough and efficient” standard does not do that, he said.

“It puts education decisions in the hands of judges instead of educators and lawmakers,” he said. “It should be made by those who know the most about it.”

He said he didn’t understand why so many people opposed what he saw as a common-sense change.

Higgins, however, said the proposal came “completely out of the blue” and makes no sense for good government.

The words ensure there is a system of education that exists everywhere in Ohio and is high-quality for all Ohio children, she said. There are three branches of government for a reason: to balance each other.

“If you take the courts out of the equation, why wouldn’t you just start taking the courts out of anything that has to do with human services?” she asked.

The education subcommittee is expected to meet Thursday in Columbus to further discuss policy changes, including the merits of “thorough and efficient.” Higgins said her group plans to pack the committee with supporters to argue against the change.

While she said she didn’t believe there was the political will to remove the clause — either by the committee or by the electorate — it was important to do everything possible to get their message across. Coley, however, said it was too early to say what will come from the debate. He added it was important to look at the concerns of people who are troubled by the proposed changes.

Readler said he does not expect a decision to be made on the issue this month.

“It’s not something anyone would want to rush into,” he said.

DeRolph decided by phrase

A 12-year court battle over Ohio’s school funding hinged on the terms “thorough and efficient” as the Ohio Supreme Court declared the school funding system unconstitutional.

The standard was the key point in the DeRolph v. State of Ohio case that stretched from 1991 to 2003 and resulted in four decisions by the top court.

“The sovereign people made it mandatory upon the General Assembly to secure not merely a system of common schools, but rather a thorough and efficient system of common schools,” read part of the second DeRolph decision.

In the fourth decision, the majority of the court recognized the difficulty in creating such a system of schools, but concluded the system in 2002 remained unconstitutional.

But since that time, arguments about school funding have continued throughout the state. William Phillis, author of the blog Ohio Coalition for Equity and Advocacy of School Funding, said that is no reason to get rid of the only education standard in the state constitution. He said after the first DeRolph decision, there was some discussion to removing “thorough and efficient” from the constitution, but that thought was rejected.

“If there’s no standard in the constitution, if the state is merely required to provide education, there’s no way to challenge whether the state is meeting its responsibility,” he said. “Even with a standard, it’s difficult to get an equitable and adequate system.”

In addition, he said the DeRolph decisions did result in the creation of the Ohio School Facilities Commission, which has invested billions of dollars helping local school districts upgrade its buildings.

According to the commission’s annual report, 60 new or renovated school buildings for kindergarten through 12th grade were opened in the last fiscal year, bringing the number of buildings opened from the program to 1,049. Since its inception, the commission has spent $10.3 billion on schools for kindergarten through 12th grade.

“There are over 1,000 new school buildings in Ohio that wouldn’t be there without ‘thorough and efficient,’ ” Phillis said.